Appeal No.	 EAT/567/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 July 1998

Before
THE HONOURABLE MR JUSTICE MORISON (P)
LORD DAVIES OF COITY CBE
MISS S M WILSON

MR J REY	APPELLANT

THE POST OFFICE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR E M GRANT
(Representative)
Northern Complainant
Aid Fund
Check Point
45 Westgate
Bradford BD1 2TH	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to determine whether the Appellant has an arguable point of law in a Notice of Appeal against a decision of an Industrial Tribunal Chairman sitting alone.  

	The complaint in this case was one of unlawful indirect discrimination on grounds of race, brought under section 1 (1) (b) of the Race Relations Act 1976.  The Applicant works for the Post Office.  The Post Office requires all its employees to sign up to terms which require, or may require, their staff to work overtime and to work on various times; on weekdays, Sundays, Bank Holidays and Public Holidays, as the needs of the Service demand.  

	The Applicant is a member of the Seventh Day Adventist Church.  As such, it is contrary to his faith to work between sunset on a Friday and sunset on a Saturday.  It is his case that a large proportion of the members of his Church are, like himself, from the ethnic minorities and thus it is that, although there is no law which proscribes in England, discrimination on the grounds of religion, he is able to assert that the condition which the Post Office applies to him and other staff is unlawfully discriminatory in its effect, having regard to the provisions of section 1 (1) (b) (i).  Of course, if that hurdle were overcome it would be open to the Post Office to seek to justify the requirement that their staff should hold themselves available for working on Saturdays.

	What happened in this case was that, after the complaint had been filed and the Respondent’s Answer filed, a meeting for directions or a pre-hearing discussion, as it was called, took place before a Chairman on 20 November 1997.  Mr Grant, who is a professional representative, representing the Applicant in this case, was present, as was a representative on behalf of the Post Office.  There was a discussion about the nature of the claim which was being presented, and certain discussion about figures that might be available to be produced and the Chairman, as confirmed in a letter sent on 26 November, wrote this:

“The complicating feature in this case is that this is not the only religion with such a prohibition.  Whether the appropriate ‘disproportionate effect’ can be shown when taking into account other religions with similar tenets is a subject that can be dealt with at a preliminary hearing.
Accordingly, this matter will be listed for a preliminary hearing to determine that issue.”

	That preliminary hearing duly took place on 6 January, before the Chairman sitting alone.

	Mr Grant respectfully submits that the learned Chairman erred in the way in which he approached the matters in issue.  Section 9 (4) of the Industrial Tribunals Act 1996, confers a rule-making power which will entitle Chairmen to sit on their own when determining the entitlement of a party to bring proceedings.  Rule 6 of the Industrial Tribunals Rules is the exercise of that power.

	Mr Grant says that the question as to whether the Applicant could show the matters demanded of it by section 1 (1) (b) (i) was not a question of entitlement to bring proceedings within the meaning of the Statute and the Rule, but rather was part of the determination that was required by a full Tribunal hearing the merits of the complaint.  Accordingly, he says that if the real purpose behind the Industrial Tribunal’s attempt to hold a preliminary hearing was because the Chairman was sceptical as to the prospects of success, then either the learned Chairman should have arranged for a pre-hearing review under rule 7 or, in extreme case, have decided to apply his powers under rule 13 to strike the application out, on the basis that it was scandalous, frivolous or vexatious.

	It was Mr Grant’s case that the learned Chairman has fallen into error.  He has effectively had part of a substantive hearing of a race complaint, but sitting entirely on his own.  We consider that point to be arguable.  We do not say anything about the merits of the case itself, but we consider it to be arguable that the procedure followed by the Industrial Tribunal in this case was erroneous in law.  For that reason the appeal will be allowed to proceed to a full hearing.

	We will not require the Notes of Evidence.  It is a point that the President would like to deal with himself, if possible.  I would think that the argument at the full hearing would last no longer than an hour and a half.